December 3, 2009

Justices Breyer and Scalia concern themselves with hot dogs (transcript PDF) in a case about whether public access to newly added beach is a "taking" of the property of homeowners who previously had private beach extending all the way to the water:

“You didn’t lose one inch,” Justice Stephen G. Breyer told the lawyer for the owners, D. Kent Safriet. “All you lost was the right to touch the water. But the court here says you in effect have that right because you can walk right over it and get to the water.”

The new strip of land is as wide as 75 feet in places, and the public has access to it.

“If somebody wanted to put up a hot dog stand on this new land,” Chief Justice John G. Roberts Jr. asked, “would you have the right to tell them they can’t?”

“Absolutely not,” Mr. Safriet answered.

Justice Breyer said the relevant law did protect the owners’ right to enjoy their land in peace, meaning they could at a minimum ban “a noisy hot dog stand that keeps you up at night.”

Justice Antonin Scalia found the middle ground, as it were. “You can have quiet hot dog stands during the daytime,” he said.

Justice Sonia Sotomayor added that even before the beach project, “a hot dog stand could have sat in the water.”

during the recent offshore storms, we here in south florida lost a lot of beach due to erosion...parhaps 10-20 yards at mean tide. if more storms occur then more will be lost and the government, who is the only entity that can fill in a public beach will step in but in doing so they have to create a uniform coast line.

the homeowners who say their land extends to the water clearly benefit but the rub is that their land must be filled in as well or the other beach fill in will not hold.

did it not occur to these people to fill it in themselves? and what of persons walking from one public area to another...can they not cross the "property"?

as to the hot dog stand, there are laws in place that regulate that now so the argument and that exchange is a non-starter at best.

@hdhouse: "...government, who is the only entity that can fill in a public beach will step in but in doing so they have to create a uniform coast line."

And in this and many other creative ways does the state make "mine" into "theirs".

That is, "the state can take from A and give to B because it wants to make B better off. It's quite willing to make A worse off to do so. That looks to most people like theft mediated by legislative behavior."

But no worries, there are no unintended consequences to be concerned with when property rights disappear.

The State has a reason to replenish the beach: it maintains the properties that it's getting tax revenues from. No beach replenishment, no house (eventually). But the homeowners accrue a significant benefit -- apparently for free, as far as I can tell -- when the State makes a nice pretty beach outside their back door.

Is it better for property rights to disappear, or for the property itself to disappear?

Well, if I'm a taxpayer a couple blocks from the Ocean, and my tax $$s are going to replenish a beach I can't use because it belongs to the owners of the property, why should I not elect representatives to the Govt that will put a stop to such a practice? It seems like money is just benefitting the homeowners.

What if the state was building pools for all these oceanfront properties? That's adding to the value just like replenishing the beach is. Why should the rest of the taxpayers pay for that with no benefit?

I wonder if the homeowners complained about the beach replenishment, or just the consequence of it.

MM, exactly.At the same time, why should the property owner lose what's hers or his because the state finds it necessary to Do Something?

A compromise on eminent domain says that "we will allow the majority to have its way so long as it's willing to buy off its dissenters at a fair valuation. We can bring ourselves to a position in which we stop anybody from being made worse off by virtue of collective impositions."

Justice demands the owner be compensated fairly, and not merely as the state sees fit (or more often, not at all).

Epstein again: "The way to understand property rights is as a system of rights designed to advance community welfare rather than to frustrate it. A coherent theory would allow you to understand that the public interest is the sum of all private interests and that those private interests are properly arranged and organized in a world which respects property rights but allows the government to take them so long as it compensates for the full extent of the losses."

MadMan, if the local government tore out the sidewalk in front of your house (provided you have one) and replaced it, would you be happy with someone setting up a hot dog stand on it in front of your house? Could I set up a tractor repair business there?

Allen, I think a better parallel would be: What if they moved the road in front of my house, shifting it 20 feet away from the house, and suddenly my front lawn is bigger? (It's not an exact parallel, since beaches are expected to erode, roads aren't). Who then owns that strip of "new" property? Should I just get it because I'm there? Everyone else in Madison can just pay for my increased landholdings?

The homeowners in FL would have much more of my sympathy if they had paid for the beach replenishment out of pocket. If the state is giving you a big old benefit, expect there to be a cost associated with it (I mistyped cost as 'coast' first :) )

Property rights on the water's edge are always odd.On the Great Lakes, I believe the property line goes to the historic low water mark only.In CA and Hawaii, there is virtually no such thing as a truly private beach property.

I thought it was the opposite--that public rights went to historic high water. Anyway, if you have waterfront property, you should realize that people will come along the beach. Where I go in Wisconsin in the summer, most people resolve this by not worrying about it and waving to people like me who are strolling along the beachfront.

Based on the article, it looks like FL law allows property to extend the water line. Joe Public, who has paid for the beach replenishment, could stroll through the water in front of those houses, but you couldn't camp out on that beach you paid for.

The state can condemn anything for public use, and must pay the FMV for it.The cases usually argue where the line already exists so that the taking is smaller and cheaper to the public, or larger and more profitable to the owner. In Georgia the line is the high water mark. That can vary over time but is a known at taking time. I suspect the Florida Beach Replenishment projects see themselves as benefitting the owner, and they want to pay nothing much for an easement to adjust the sand pumped in over the old High Water Mark boundary and want the public use easement taken as a package deal. This psychology of land border fights is unusual until you have been in one. The compromise mode of money negotiations frequently is fought by an owner without compromise to the bitter end for a need to protect their very being that seems to be emotionally tied up in control over a few feet of dirt. People will surprise you.

If it's a capital improvement that increases the value of an affected property by a definable amount, then the property may be assessed for the improvement. I don't see how it's that much different from the City replacing the street, curb & gutter in front of my house and sending me the bill (which they did a couple of years ago).

I hope the Court sees fit to tell the state that they can't just "supplement" somebody's waterfront property and declare it public land. Assessing the property owner for the beach restoration seems the most fair and proper route, to me.

squid makes a good point. Did the judges address that? How IS this different that replacing the sewer line in front of my house? Or the road in front of my house? The sidewalk? In all cases those of us who live in front of the improvements, get billed for them. Sometimes spread out over 20 years, but still billed for them. I can remember my folks going to the city commission to object to apartments built in the neighborhood, because of the upgrade to the utilities that they would have to pay for.

“You didn’t lose one inch,” Justice Stephen G. Breyer told the lawyer for the owners, D. Kent Safriet. “All you lost was the right to touch the water.

This is what passes for brillance on the SC?

There's an easy way to avoid the conundrum: "the taxpayers paid for the replenishment, but they don't have access to the beach". Don't make the taxpayers pay for beach replenishment in the first place. The property owners should pay for it themselves.

David-Yes, you're right. It is the high water mark. What threw my memory off is it is the "ordinary" high water mark, and not historic as I thought.So basically, where you can tell the water would ordinarily meet the shore.

Original Mike...In Florida the local industry is 1/8 fruit and vegetables, and 1/8 fishing, but it is 3/4 tourists and retirees. The beaches are the bait. Without beautiful bait beaches to attract more tourists and retirees there would be no supply of newcomers for the locals to hunt for fun and profit.

How IS this different that replacing the sewer line in front of my house? Or the road in front of my house? The sidewalk? In all cases those of us who live in front of the improvements, get billed for them.

I've never heard of such a thing; you must live in a weird state.

As for takings: how about we go with the plain interpretation of the thing. Someone owned property, it was taken away from them. Pretty open and shut for normal people (i.e. non-lawyers.)

Your property has probably been assessed, you just don't know it. In some locations, assessments are made individually and are paid separate from property taxes. In other locations, they're bundled in with property taxes. In still others, they're simply handled as a property tax increase. And there are still other variations.

The State has a reason to replenish the beach: it maintains the properties that it's getting tax revenues from. No beach replenishment, no house (eventually). But the homeowners accrue a significant benefit -- apparently for free, as far as I can tell -- when the State makes a nice pretty beach outside their back door.

Is it better for property rights to disappear, or for the property itself to disappear?

12/3/09 7:22 AM"

Unlike you and HD, I actually live in an ocean front town in So. FL with ocean front homes. Although I'm not one of the fortunate ones on the ocean, the property values of homes with private beaches are astounding. In my little one mile long town, the average ocean front home will sell today in this market and economy for at least six million dollars and many of those homes sold for as much as fifteen million dollars. The point being if the beach now becomes public because of beach replenishment, then the property values plummet. Probably by half or more. Since the property taxes here are 2.8% and the town only gets to keep 8% of the property tax, the rest going to the county, the loss of tax revenue would be enormous.

HD, if you really lived in So. FL you would not talk so much crap. The public always has had the right to traverse the strip between the low tide and the high tide. You do not have the right to traverse the beach to that strip on private land but if start from a public beach you have every right to keep on walking that strip.

As for tax dollars, please. The average property tax paid by those homes is between $250 to $300 thousand per year even with our version of prop 13.The fact that every condo building on the ocean from Palm Beach County down to the Keys is worth anything is because it is beach front, not walking distance to the beach. Using your logic and Madison Man's logic the assed value for taxes on every ocean front property in the state would decrease by half or more. Now that may not be a problem for you if you want to be go to the beach on what is really someone else's property, but unless you are willing to fire about half of the local and state employees or have your taxes multiply several times to offset the loss, I would be quite happy to have beach replenishment if I were you.

Another HD forgets, while the beach front property owners benefit, it's not primarily for their benefit. The beach acts as a barrier against storm surges protecting the areas further inland. Miami Beach is an artificial island, a thin strip of sand on the ocean side and reclaimed mangroves on the bayside. That is pretty much all of South Florida from Stuart to the Keys. The ocean front has always paid a disproportionate amount of the taxes (along with the bayside). You probably live in one those planned communities out west, built on reclaimed Everglades, which has the cost the local taxpayer multiple times more in money in flood control and aquifer issues than beach replenishment ever has. Also the ocean is public, so just how is a private owner suppose to legally replenish the beach? To the extent they replenish the beach they will have pushed back the ocean, public property. That judges in the Supreme Court have made such stupid comments is mind boggling.